CFS-28-07-00017-E National Criminal History Record Checks through the FBI
7/11/07 N.Y. St. Reg. CFS-28-07-00017-E
NEW YORK STATE REGISTER
VOLUME XXIX, ISSUE 28
July 11, 2007
RULE MAKING ACTIVITIES
OFFICE OF CHILDREN AND FAMILY SERVICES
EMERGENCY RULE MAKING
I.D No. CFS-28-07-00017-E
Filing No. 644
Filing Date. Jun. 26, 2007
Effective Date. Jun. 26, 2007
National Criminal History Record Checks through the FBI
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Parts 421 and 443 of Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d) and 378-a(2); and L. 2006, ch. 668, section 3
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
To adopt these regulations on an emergency basis is necessary for the preservation of the health, safety and welfare of foster children needing foster and adoptive placement. New federal and State statutes require a national criminal history record check through the Federal Bureau of Investigation (FBI) of persons applying for certification or approval as foster or adoptive parents and new State statue requires a national criminal history record check through the FBI of other persons over the age of 18 who reside in the home of such applicants.
The current criminal history record check authorized by section 378-a(2) of the Social Services Law (SSL) and Office of Children and Family Services (OCFS) regulations 18 NYCRR Parts 421 and 443 only authorize a check of the data base maintained by the Division of Criminal Justice Services (DCJS). The DCJS data base generally does not reflect crimes committed outside of the State of New York. Therefore, authorized agencies to which persons apply for certification or approval as a foster or adoptive parent would not be aware of whether an applicant or another person over the age of 18 residing in the home of an applicant has a criminal history in another state which could present a health and safety issue for foster children placed in the applicant's home. The regulations enable authorized agencies to conduct a national criminal history record check on such persons, thereby enhancing the safety of children placed in such foster or adoptive homes.
Subject:
National criminal history record checks through the FBI of prospective foster or adoptive parents and persons over the age of 18 residing in the homes of such individuals.
Purpose:
To implement the requirements of chapter 668 of the Laws of 2006 that amended section 378-a (2) of the SSL to require a national criminal history record check through the FBI of all persons applying for certification or approval as foster or adoptive parents and all other persons over the age of 18 who reside in the homes of such applicants. The amendment to section 378-a (2) of the SSL became effective on Jan. 11, 2007. Section 3 of chapter 3 of the Laws of 668 grants OCFS emergency rule making authority to implement the law by its effective date.
The regulations also implement the requirements of the federal Adam Walsh Child Protection Act of 2006 (P.L. 109-248) that require states to conduct a national criminal history record check on all persons applying for certification or approval as foster or adoptive parents, irrespective of whether federal Title IV-E funding is being sought for the placement of a foster child in the home of such a person. Compliance with the federal act is required for New York to have a compliant Title IV-E State Plan and to satisfy federal safety requirements for individual foster care placements.
Substance of emergency rule:
Section 421.11 (First Contact With Prospective Adoptive Parents)
The regulations require authorized agencies that operate an adoption program to inform a person applying to be an approved adoptive parent of the requirement that the applicant and each person over the age of 18 who resides in the home of the applicant be fingerprinted for the purpose of conducting a national criminal history record check through the Federal Bureau of Investigation (FBI).
In addition, the regulations require that a voluntary authorized agency must notify a person applying for approval as an adoptive parent that the applicant and each person over the age of 18 who resides in the home of the applicant will be asked to sign a consent for the release to the voluntary authorized agency of crime specific information provided to the Office of Children and Family Services (OCFS) by the FBI. The voluntary authorized agency must also advise the applicant that the refusal to sign the consent is a basis, in and of itself, to deny the person's application.
Section 421.15 (Adoption Study Process)
The regulations require authorized agencies that operate an adoption program to inform the applicant at the initial appointment or meeting with the authorized agency that a national criminal history record check through the FBI must be performed before the conclusion of the applicant's home study.
Section 421.19 (Foster Parents)
The regulations require voluntary authorized agencies to inform a person who is currently a certified or approved foster parent and who applies to such agency for approval as an adoptive parent that the applicant and each person over the age of 18 who resides in the home of the applicant will be asked to sign a consent for the release of crime specific information received by OCFS from the FBI and that the refusal to provide such a consent is a basis, in and of itself, for denial of the person's application.
The regulations require authorized agencies that operate an adoption program to perform a national criminal history record check through the FBI of a foster parent seeking approval as an adoptive parent and each person over the age of 18 who resides in the home of such person.
Section 421.27 (Criminal History Record Review)
The regulations require that authorized agencies perform a national criminal history record check through the FBI for each person seeking approval as an adoptive parent and each person over the age of 18 who resides in the home of the applicant. The regulations set forth the process for collecting and processing fingerprints for the national criminal history record check and the standards for the review and dissemination to authorized agencies of criminal history record information received by OCFS from the FBI.
The regulations provide that a voluntary authorized agency must deny an application when the applicant or other person over the age of 18 who resides in the home of the applicant has a criminal conviction or open charge reported to OCFS by the FBI for a crime committed outside of New York State and such person thereafter refuses to consent to disclosure of the specific crime or crimes when requested to do so by the voluntary authorized agency.
In addition, the regulations provide that if an application for approval is denied, the authorized agency must include within its notice of denial a description of the record review process available through the FBI.
The regulations require authorized agencies that operate a foster boarding home program to inform a person applying for certification or approval as a foster parent of the requirement that the applicant and each person over the age of 18 who resides in the home of the applicant must be fingerprinted for the purpose of conducting a national criminal history record check through the FBI.
The regulations require that each applicant for certification or approval as a foster parent and each person over the age of 18 who resides in the home of the applicant must submit completed fingerprint cards for a national criminal history check performed by the FBI.
In addition, the regulations provide that if an application for certification or approval is denied, the authorized agency must include within its notice of denial a description of the record review process available through the FBI.
The regulations clarify that the records maintained by the authorized agency must include such criminal history responses from OCFS to reflect that both FBI and DCJS checks have been completed.
Section 443.7 (Agency Procedures for Certification or Approval of Potential Emergency Foster Homes and Emergency Relative Foster Homes)
The regulations provide that when a foster child is placed in a foster home that is certified or approved on an emergency basis that the authorized agency placing the child must secure fingerprints from the foster parent and each person over the age of 18 who resides in the home of the foster parent for the purpose of conducting a national criminal history record check through the FBI.
Section 443.8 (Criminal History Record Review)
The regulations require that authorized agencies perform a national criminal history record check through the FBI for each person applying for certification or approval as a foster parent and each person over the age of 18 who resides in the home of the applicant. The regulations set forth the process for collecting and processing fingerprints for the national criminal history record check and the standards for the review and dissemination to authorized agencies of criminal record information received by OCFS from the FBI.
The regulations require that when a person applies for certification or approval to a voluntary authorized agency that the voluntary authorized agency must notify the applicant that the applicant and each person over the age of 18 who resides in the home of the applicant will be asked to sign a consent for the release of crime specific information provided to OCFS by the FBI and that the voluntary authorized agency must advise the applicant that the refusal to sign the consent is a basis, in and of itself, to deny the person's application.
The regulations provide that a voluntary authorized agency must deny an application when the applicant or other person over the age of 18 who resides in the home of the applicant has a criminal conviction or open charge reported to OCFS by the FBI for a crime committed outside of New York State and such person thereafter refuses to consent to disclosure of the specific crime or crimes when requested to consent by the authorized agency.
Section 443.10 (Annual Renewal of Certified and Approved Foster Homes)
The regulations require that an authorized agency that operates a foster boarding home program must, at the time of renewal of the certification or approval of a foster home, conduct a national criminal history record check through the FBI of any person over the age of 18 who currently resides in such foster home, other than the foster parent, who has not previously had a national criminal record check completed pursuant to 18 NYCRR Part 443.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire September 23, 2007.
Text of emergency rule and any required statements and analyses may be obtained from:
Public Information Office, Office of Children and Family Services, 52 Washington St., Rensselaer, NY 12144, (518) 473-7793
Regulatory Impact Statement
1. Statutory authority:
Section 20(3)(d) of the Social Services Law (SSL) authorizes the Office of Children and Family Services (OCFS) to establish rules and regulations to carry out its duties pursuant to the provisions of the SSL.
Section 378-a (2) of the SSL requires criminal history record checks be made on foster and adoptive parent applicants and other persons over the age of 18 who reside with such applicants.
2. Legislative objectives:
The regulations implement the requirements of Chapter 668 of the Laws of 2006 that amended section 378-a(2) of the SSL to require a national criminal history record check through the Federal Bureau of Investigation (FBI) for all persons applying for certification or approval as foster or adoptive parents and all other persons over the age of 18 who reside in the home of the applicants.
The regulations also implement the requirements of the federal Adam Walsh Child Protection Act of 2006 (P. L. 109-248) that requires states to conduct a national criminal history record check on all persons applying for certification or approval as foster or adoptive parents, irrespective of whether or not the social services district seeks federal Title IV-E funding for the placement. Compliance with the federal act is required for the state to have a compliant Title IV-E State Plan and to satisfy federal safety requirements for individual foster care placements.
The requirements for a national criminal history record check set forth in the regulations are in addition to the existing provisions in section 378-a(2) of the SSL that require a New York State criminal history record check to be conducted through the New York State Division of Criminal Justice Services (DCJS). In addition, the applicant must provide a sworn statement attesting to any criminal convictions of any applicable family member in New York State or any other jurisdiction.
By enacting Chapter 668 of the Laws of 2006, the legislature sought to enhance the scope of the criminal background checks performed by social services districts and voluntary authorized agencies by requiring that fingerprints also be checked through the FBI, thus allowing officials to corroborate information and gain a more accurate picture about any crimes committed nationally, including arrests and/or convictions.
3. Needs and benefits:
Both federal and state lawmakers enacted new laws requiring national criminal background checks to determine the complete criminal history of applicants to be foster or adoptive parents and adults who reside in their households. It is important that foster and adoptive parents not be fully certified or approved without taking into account all applicable criminal records, and where such records are found, doing a safety assessment as prescribed by OCFS. These new requirements should afford a safer environment for foster children placed in foster homes or for the purpose of adoption.
4. Costs:
The federal and State statutory provisions requiring national criminal history background checks, which are being implemented through these regulations, will result in increased costs to the State. Based on the current statistics for conducting State criminal history background checks, it is projected that 17,000 persons will be subject to the new required national criminal history records checks during the first year of implementation. Based on that projection, OCFS estimates that the total costs associated with the national criminal history database check process during the first year of implementation will be approximately $875,000. The estimate includes $408,000 to cover the $24 fee that must be paid to the FBI for processing each set of fingerprints, as well as $467,000 for the costs to enhance OCFS' criminal history review administrative and legal units and the OCFS criminal history computer system to process the national criminal history database checks.
It is anticipated that approximately $188,125 in federal reimbursement under Title IV-E of the federal Social Security Act will be available for the annual costs of conducting the national criminal history record checks. The remaining cost of $686,875 will be State share.
5. Local government mandates:
The regulations require social services districts and voluntary authorized agencies that certify or approve foster and/or adoptive parents, to include as part of the licensing process conducting national criminal history background checks through the FBI in order to compile a complete criminal record on applicants and other adults residing in their household and take any such record into account by performing the OCFS prescribed safety assessment, prior to fully certifying or approving the home.
6. Paperwork:
Social services districts and voluntary authorized agencies will need to review all results of the national criminal background checks as they currently must review the results of the state criminal background checks. Where a criminal record exists, safety assessments must be documented. Pertinent information must be recorded on the State's SACWIS system, CONNECTIONS.
7. Duplication:
The regulations do not duplicate other State requirements.
8. Alternatives:
There are no alternatives to imposing these regulations, as they are required by both State and federal statutes.
9. Federal standards:
The aforementioned Adam Walsh Child Protection Act of 2006, contains comparable standards and requirements to Chapter 668 of the Laws of 2006.
10. Compliance schedule:
Compliance with the regulations must begin upon the effective date of Chapter 668 of the Laws of 2006, January 11, 2007.
Regulatory Flexibility Analysis
1. Effect of Rule:
Social services districts will be affected by the regulations. There are 58 social services districts and the St. Regis Mohawk Tribe which is authorized by section 371(10)(b) of the Social Services Law to provide child welfare services pursuant to its State/Tribal Agreement with the Office of Children and Family Services (OCFS). Most voluntary foster care and adoption agencies also will be affected by the regulations. There are approximately 68 voluntary agencies operating foster care programs that include foster boarding home programs. There are 119 voluntary agencies authorized that operate adoption programs, including 19 agencies located out-of-state and approved to do adoptions in New York State pursuant to Article 13 of the Not-For-Profit Corporation Law.
2. Compliance Requirements:
The regulations require social services districts and voluntary authorized agencies that certify or approve foster and/or adoptive parents, to include as part of the licensing process conducting national criminal history background checks through the Federal Bureau of Investigation (FBI) in order to compile a complete criminal record on applicants and other adults residing in their household and take any such record into account by performing the OCFS prescribed safety assessment, prior to fully certifying or approving the home.
3. Professional Requirements:
The regulations would not require social services districts or voluntary agencies to hire additional staff in order to implement them. Existing staff will be able to procedurally accommodate the minimal changes on the business process these regulations entail.
4. Compliance Costs:
The federal and State statutory provisions requiring national criminal history background checks, which are being implemented through these regulations, will result in increased costs to the State. Based on the current statistics for conducting State criminal history background checks, it is projected that 17,000 persons will be subject to the new required national criminal history records checks during the first year of implementation. Based on that projection, OCFS estimates that the total costs associated with the national criminal history database check process during the first year of implementation will be approximately $875,000. The estimate includes $408,000 to cover the $24 fee that must be paid to the FBI for processing each set of fingerprints, as well as $467,000 for the costs to enhance OCFS' criminal history review administrative and legal units and the OCFS criminal history computer system to process the national criminal history database checks.
It is anticipated that approximately $188,125 in federal reimbursement under Title IV-E of the federal Social Security Act will be available for the annual costs of conducting the national criminal history record checks. The remaining cost of $686,875 will be State share.
5. Economic and Technological Feasibility:
The regulations will not impose additional economic or technological burdens on social services districts or voluntary authorized agencies.
6. Minimizing Adverse Impact:
OCFS will use card scan, which will enable social services districts and voluntary authorized agencies to continue to submit a single fingerprint card per person. Card scan allows OCFS to electronically send fingerprint cards to the Division of Criminal Justice Services (DCJS). DCJS then electronically sends the fingerprint cards to the FBI. This process reduces the timeframe for the receipt of results from weeks to days, consequently allowing for more timely approval or certification decisions.
7. Small Business and Local Government Participation:
The timeframes prescribed by the State and federal legislation precluded the participation of small businesses and local governments in the development of these regulations. They were filed on an emergency basis in order to meet the State and federal timeframes; those affected will now have an opportunity to comment upon publication of this Notice of Proposed Rule-Making in the State Register.
Rural Area Flexibility Analysis
1. Effect on Rural Areas:
The regulations will affect the 44 social services districts that are in rural areas and the St. Regis Mohawk Tribe, which is authorized by section 371(10)(b) of the Social Services Law to provide child welfare services pursuant to its State/Tribal Agreement with the Office of Children and Family Services (OCFS). Those voluntary authorized agencies in rural areas contracting with social services districts to provide foster care and adoption services also will be affected by the proposed regulations. Currently, there are approximately 85 such agencies.
2. Compliance Requirements:
The regulations require social services districts and voluntary authorized agencies that certify or approve foster and/or adoptive parents, to include as part of the licensing process conducting national criminal history background checks through the Federal Bureau of Investigation (FBI) in order to compile a complete criminal record on applicants and other adults residing in their household and take any such record into account by performing the OCFS prescribed safety assessment, prior to fully certifying or approving the home.
3. Professional Services:
The regulations do not require social services districts or voluntary authorized agencies to hire additional staff in order to implement them. Existing staff will be able to procedurally accommodate the minimal changes to the business process these regulations entail.
4. Compliance Costs:
The federal and State statutory provisions requiring national criminal history background checks, which are being implemented through these regulations, will result in increased costs to the State. Based on the current statistics for conducting State criminal history background checks, it is projected that 17,000 persons will be subject to the new required national criminal history records checks during the first year of implementation. Based on that projection, OCFS estimates that the total costs associated with the national criminal history database check process during the first year of implementation will be approximately $875,000. The estimate includes $408,000 to cover the $24 fee that must be paid to the FBI for processing each set of fingerprints, as well as $467,000 for the costs to enhance OCFS' criminal history review administrative and legal units and the OCFS criminal history computer system to process the national criminal history database checks.
It is anticipated that approximately $188,125 in federal reimbursement under Title IV-E of the federal Social Security Act will be available for the annual costs of conducting the national criminal history record checks. The remaining cost of $686,875 will be State share.
5. Minimizing Adverse Impact:
OCFS will utilize card scan which will enable social services districts and voluntary authorized agencies to continue to submit a single fingerprint card per person. Card scan allows OCFS to electronically send fingerprint cards to the Division of Criminal Justice Services (DCJS). DCJS in turn electronically sends then to the FBI. This process reduces the timeframe for the receipt of results from weeks to days, consequently allowing for more timely licensing decisions.
6. Small Business Participation:
The timeframes prescribed by the State and federal legislation precluded the participation of small businesses in the development of these regulations. They were filed on an emergency basis in order to meet the State and federal timeframes; those affected will now have an opportunity to comment upon publication of this Notice of Proposed Rule-Making in the State Register.
Job Impact Statement
A full job statement has not been prepared for the proposed regulation implementing portions of the federal Adam Walsh Child Protection Act of 2006 and Chapter 668 of the Laws of 2006. The regulations will not have a substantial adverse impact on jobs or employment opportunities and in fact will not result in the loss of any jobs. This finding is based upon the fact that the regulations prescribe small additional duties for child welfare staff.
